21-6498

Rose v. Garland

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 19th day of May, two thousand twenty-three.

PRESENT: Amalya L. Kearse,

Dennis Jacobs,

Steven J. Menashi,

Circuit Judges.

____________________________________________

MATTHEW O’DANIEL ROSE,

Petitioner,

v. No. 21-6498

MERRICK B. GARLAND, 

UNITED STATES ATTORNEY GENERAL

Respondent.*

____________________________________________

* The Clerk of Court is directed to amend the caption as set forth above.
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For Petitioner: Melissa M. Desvarieux, Desvarieux Law 

Group, P.C., Long Island City, NY.

For Respondent: Brian M. Boynton, Principal Deputy Assistant 

Attorney General, Civil Division; Kohsei 

Ugumori, David J. Schor, Senior Litigation 

Counsel, Office of Immigration Litigation, U.S. 

Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and

DECREED that the petition for review is DISMISSED.

Petitioner Matthew O’Daniel Rose, a citizen of Jamaica, seeks review of an

August 13, 2021, decision of the BIA denying his motion to remand and affirming 

a February 24, 2021, decision of an Immigration Judge (“IJ”) denying his 

application for cancellation of removal. In re Matthew O Daniel Rose, No. A213 638 

454 (B.I.A. Aug. 13, 2021), aff’g No. A213 638 454 (Immigr. Ct. N.Y.C. Feb. 24, 2021).

We assume the parties’ familiarity with the underlying facts and procedural 

history. 

We have reviewed the IJ’s decision as supplemented by the BIA. See Yan 

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Our jurisdiction to review the 

agency’s denial of discretionary relief, including cancellation of removal and 

adjustment of status, is limited to “constitutional claims or questions of law.”

8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. Garland, 142 S. Ct. 1614, 1627 (2022) 

(“Federal courts lack jurisdiction to review facts found as part of discretionaryrelief proceedings under ... provisions enumerated in § 1252(a)(2)(B)(i).”). Our

review of motions to remand, like motions to reopen, is similarly limited when 

such motions are tied to discretionary relief. See Sepulveda v. Gonzales, 407 F.3d 59, 

64 (2d Cir. 2005). Rose has not raised a reviewable constitutional claim or question 

of law as to the denial of cancellation of removal or as to the denial of his motion 

to remand.
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To obtain cancellation of removal, a nonpermanent resident such as Rose 

must, as relevant here, “establish[] that removal would result in exceptional and 

extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the 

United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. 

§1229b(b)(1)(A)-(D). Before the IJ, Rose sought cancellation of removal based on 

hardship to his American citizen daughter. We deem that claim abandoned 

because Rose has not addressed it in his brief here. See Yueqing Zhang v. Gonzales, 

426 F.3d 540, 545 n.1 (2d Cir. 2005) (concluding that an alien abandoned a claim 

“by failing to discuss [it] anywhere in his brief”). 

After the IJ’s decision denying cancellation of removal, Rose married his 

daughter’s mother, who was a lawful permanent resident. Rose then argued 

before the BIA that the matter should be remanded to the IJ for consideration of

cancellation of removal based on his new marital status and for him to apply to 

adjust his status based on a visa petition that his wife had filed on his behalf. In 

support of remand, Rose submitted his marriage certificate and a receipt from U.S. 

Citizenship and Immigration Services (“USCIS”) for the visa petition that, if 

granted, would allow him to apply to adjust to permanent resident status.

Rose has not identified a question of law regarding the BIA’s denial of 

remand for further consideration of cancellation of removal. Although his 

marriage meant that his wife became a qualifying relative for purposes of 

cancellation, he did not present evidence of the hardship that his removal would 

cause her. 8 U.S.C. § 1229b(b)(1)(D). A movant has the burden to establish prima 

facie eligibility for the relief sought and to submit evidence to support a grant of 

relief. See 8 U.S.C. § 1229a(c)(7)(B) (“The motion to reopen shall state the new facts 

that will be proven at a hearing to be held if the motion is granted, and shall be 

supported by affidavits or other evidentiary material.”); Li Yong Cao v. DOJ, 421 

F.3d 149, 156 (2d Cir. 2005) (“A motion to remand that relies on newly available 

evidence is held to the substantive requirements of a motion to reopen.”); Jian Hui 

Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (holding that a movant’s “ability 

to secure reopening depends on a demonstration of prima facie eligibility for [relief 
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from removal], which means she must show a ‘realistic chance’ that she will be 

able to obtain such relief”). Although he asserts that the agency failed to consider 

evidence, he does not identify what evidence was overlooked and he did not 

attach additional evidence to his motion.

Nor has Rose identified a question of law regarding the BIA’s denial of 

remand to allow him to apply to adjust status. Although the BIA did not list the 

reasons that Rose was ineligible to adjust, Rose has not identified why he would 

have been eligible. At the time of the BIA’s decision, the visa petition had not been 

approved and an immediately available visa is a prerequisite to adjustment.

8 U.S.C. § 1255(a). Moreover, because Rose’s wife was a lawful permanent resident 

rather than an American citizen at the time of the BIA’s decision, there were 

additional barriers to eligibility because visas for spouses of lawful permanent 

residents are limited and Rose had overstayed a prior visa. See 8 U.S.C. 

§§ 1151(b)(2)(A)(i), 1255(a), (c)(2). And because he and his wife married after he 

was ordered removed, Rose had the burden to prove that his marriage was entered 

into in good faith and not for the purpose of procuring his admission as an 

immigrant. 8 U.S.C. § 1255(e)(3), (1) (providing that an alien who marries while in 

removal proceedings must establish by “clear and convincing evidence” that the 

marriage was entered into in good faith). While Rose asserts that his wife is now 

an American citizen, he has not documented that fact, and he must first present 

that basis for adjustment to the BIA. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of 

appeals shall decide the petition only on the administrative record on which the 

order of removal is based.”).

* * *

We have considered Rose’s remaining arguments, which we conclude are 

without merit. For the foregoing reasons, we dismiss the petition for review for 

lack of jurisdiction.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court